Citation Nr: 0523005
Decision Date: 08/23/05 Archive Date: 09/09/05
DOCKET NO. 04-04 262 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York, New York
THE ISSUES
1. Entitlement to an effective date earlier than April 30,
1996, for the award of service connection for limitation of
motion of the mandible.
2. Entitlement to an initial, compensable rating for
sinusitis.
3. Entitlement to an initial rating in excess of 10 percent
for headaches.
4. Entitlement to an initial rating in excess of 10 percent
for chondromalacia of the left knee.
ATTORNEY FOR THE BOARD
D. Bredehorst, Counsel
INTRODUCTION
The veteran served on active duty from May 1983 to July 1983
and from March 1985 to February 1988.
These matters come before the Board of Veterans' Appeals
(Board), in part, on appeal from a January 2002 rating
decision in which the RO granted service connection for
limitation of motion of the mandible, effective April 30,
1996. The veteran filed a notice of disagreement (NOD) in
February 2002 and the RO issued a statement of the case (SOC)
in January 2004. The veteran filed a substantive appeal in
February 2004.
The Board's decision on the claim for an effective date prior
to April 30, 1996, for the grant of service connection for
limitation of motion of the mandible is set forth below. The
additional matters noted on the title page, for which the
veteran has completed the first of two actions required to
place these matters in appellate status, are addressed in the
remand following the order. These matters are being remanded
to the RO via the Appeals Management Center (AMC) in
Washington, D.C. The RO will notify the veteran when further
action, on his part, is required.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the claim for an effective date earlier than April
30, 1996, for the grant of service connection for limitation
of motion of the mandible on appeal has been accomplished.
2. In a January 1996 decision, the Board denied the
veteran's claim for service connection for a mandible
disorder.
3. The veteran filed an application to reopen his claim for
service connection for a mandible disorder on April 30, 1996.
4. In January 2002, the RO granted service connection for
schizoaffective bipolar disorder, effective April 30, 1996,
the date of his reopened claim.
5. There is no statement or communication between the
Board's January 24, 1996, denial and the April 30, 1996,
claim that constitutes a claim, or indicates intent to apply
for service connection, or identifies that matter as a
benefit sought.
CONCLUSION OF LAW
The criteria for an effective date earlier than April 30,
1996, for the award of service connection for limitation of
motion of the mandible have not been met. 38 U.S.C.A. §§
5107, 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400
(2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
Initially, the Board notes that, in November 2000, the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000), was signed into law. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002).
To implement the provisions of the law, VA promulgated
regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2004). The VCAA and its implementing regulations include,
upon the submission of a substantially complete application
for benefits, an enhanced duty on the part of VA to notify a
claimant of the information and evidence needed to
substantiate a claim, as well as the duty to notify the
claimant of what evidence will be obtained by whom.
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition,
they define the obligation of VA with respect to its duty to
assist a claimant in obtaining evidence. 38 U.S.C.A.
§ 5103A; 38 C.F.R. § 3.159(c).
In this case, the RO notified the appellant of the reasons
for its decision and the legal authority governing his claim
for an earlier effective date in a January 2004 SOC, and
April 2004 and June 2004 supplemental SOCs (SSOCs). The
Board finds that these actions are sufficient to satisfy any
duties to notify and assist owed the veteran. As will be
explained below, the appeal lacks legal merit; as it is the
law, and not the facts, that is dispositive, the duties to
notify and assist imposed by the VCAA are not applicable in
this appeal. See Nelson v. Principi, 18 Vet. App. 407, 410
(2004) ("Because [the veteran] has no legal entitlement to
an earlier effective date, there is no need to address
whether section 5103(a) notice was required and provided in
this case."); Mason v. Principi, 16 Vet. App. 129, 132
(2002); VAOPGCPREC 5-2004 (June 23, 2004).
II. Analysis
The record reflects that the veteran filed an application for
service connection for a mandible condition in August 1991.
In an October 1991 rating decision, the RO denied this claim.
The veteran perfected his appeal of this denial and, in
January 1996, the Board denied the appeal. The Board's
denial of the claim in January 1996, is final. See 38
U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 20.1100, 20.1105
(2004).
The veteran filed a petition to re-open his claim for service
connection for a mandible disorder in April 1996. In the
January 2002 rating decision on appeal, the RO granted
service connection, effective April 30, 1996, the date of the
veteran's reopened claim.
The provisions of 38 U.S.C.A. § 5110(a) state that, unless
specifically provided otherwise, the effective date of an
award based on an original claim, a claim reopened after
final adjudication, or a claim for increase, of compensation,
dependency and indemnity compensation, or pension, shall be
fixed in accordance with the facts found, but shall not be
earlier than the date of receipt of application therefor.
The effective date of an award of disability compensation to
a veteran shall be the day following the date of discharge or
release if application therefor is received within one year
from such date of discharge or release. 38 U.S.C.A.
§ 5110(b)(1).
The provisions of 38 C.F.R. § 3.400 stipulate that, except as
otherwise provided, the effective date of an evaluation and
award of pension, compensation or dependency and indemnity
compensation based on an original claim, a claim reopened
after final disallowance, or a claim for increase will be the
date of receipt of the claim or the date entitlement arose,
whichever is later. In the case of direct service
connection, the effective date of an award is the day
following separation from active service or date entitlement
arose if a claim is received within 1 year after separation
from service; otherwise, the date of receipt of claim, or the
date entitlement arose, whichever is later. 38 C.F.R. §
3.400(b)(2).
Under the pertinent provisions of 38 C.F.R. § 3.400(r), the
effective date of an award pursuant to a reopened claim
(under sections 3.156 and 3.157, among others) is the date of
receipt of claim or date entitlement arose, whichever is
later.
In the case at hand, the veteran previously filed a claim for
service connection in August 1991. However, as indicated
above, the denial of that claim, in January 1996, is final.
As that claim was finally resolved, it provides no basis for
a grant of the benefits then sought-service connection for a
mandible disorder. An effective date for the grant of
service connection prior to the date of the Board's decision
is legally precluded. The next claim was not filed until
April 30, 1996, and, on the basis of that claim, service
connection for limitation of motion of the mandible
ultimately was granted.
The Board notes that only four months elapsed between the
Board's decision in January 1996 and the claim to reopen,
dated April 30, 1996. Significantly, during this period, the
veteran did not file any informal or formal claims for
service connection for a mandible disorder, nor does he
contend that such was filed. Instead, the veteran contends
that his appeal had never closed from the time he raised his
original claim for service connection because VA did not
comply with its duty to assist, and that he filed numerous
statements in support of his claim during the appeal process.
For reasons already stated, the veteran's contention is not
an accurate assessment of what transpired, since the Board's
January 1996 decision is final as to the original claim. To
whatever extent the veteran feels VA did not adequately
assisted in the development of his August 1991 claim, it does
not vitiate the finality of the Board's prior decision.
Thus, as there is no earlier claim to reopen after the last
final denial in January 1996, but before the April 30, 1996,
claim, the earliest possible effective date for the award of
service connection is April 30, 1996, the date of the claim
to reopen. See 38 C.F.R. § 3.400(r).
Under these circumstances, the Board must conclude that the
record presents no legal basis for assignment of an effective
date for the award of service connection for limitation of
motion of the mandible earlier than April 30, 1996; on that
basis, the claim must be denied. Where, as here, the law,
and not the evidence, is dispositive, the appeal must be
terminated or denied as without legal merit. See Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994).
ORDER
An effective date earlier than April 30, 1996, for the award
of service connection for limitation of motion of the
mandible, is denied.
REMAND
In a September 2002 rating decision, the RO granted the
veteran's claims for service connection for sinusitis,
headaches and a left knee disability. The claims file
reflects that, in October 2002, the veteran filed an NOD;
however, the RO has yet to issue an SOC with respect to each
of these claims, the next step in the appellate process. See
38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-
41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997).
Consequently, these matters must be remanded to the RO for
the issuance of an SOC. Id. The Board emphasizes, however,
that to obtain appellate review of any issue not currently in
appellate status, a perfected appeal must be filed. See 38
U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202.
Accordingly, these matters are hereby REMANDED to the RO, via
the AMC, for the following action:
The RO should issue to the veteran an SOC
with respect to the initial ratings
assigned for sinusitis, headaches, and a
left knee disability in a September 2002
rating decision. Along with the SOC, the
RO must furnish to the veteran a VA Form
9, and afford him the appropriate
opportunity to submit a substantive
appeal perfecting an appeal as to the
pertinent issues. The veteran is hereby
reminded that to obtain appellate review
of any matter not currently in appellate
status, a timely appeal must be
perfected.
The purpose of this REMAND is to afford due process; it is
not the Board's intent to imply whether the benefits
requested should be granted or denied. The veteran need take
no action until otherwise notified, but he may furnish
additional evidence and/or argument during the appropriate
time frame. See Kutscherousky v. West, 12 Vet. App. 369
(1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v.
Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet.
App. 129, 141 (1992).
This REMAND must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans Benefits Act of 2003, Pub. L. No.
108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified
at 38 U.S.C. §§ 5109B, 7112).
______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs